The Directive also allows the Member States considerable leeway in enforcing the law. According to Art. 4, all that is required is, as already laid down by Art. 10bis of the Paris Convention, that “adequate and effective means ... for the control of misleading advertising” must be available.
Persons or organisations regarded under national law as having a legitimate interest in prohibiting misleading advertising must be granted a right to take legal action. The enforcement of the law must be possible either by a court or an administrative authority. Self-regulation alone is not sufficient (Art. 5). Pursuant to Art. 4 Para. 2, the penalties must include the prohibition order (including with interim effect), and must be independent of evidence of fault or damage. It must be possible to enforce rights by means of interlocutory injunction proceedings. In addition, the courts or administrative authorities must be able to reverse the burden of proof in suitable cases (Art. 6).
2.4 The Changes Resulting From the Unfair Commercial Practices Directive
However, in the meantime there have been changes that might reduce the importance of Directive 84/450/EEC. As we will hear from Prof. Schuhmacher,12 the 2005 Directive on Unfair Commercial Practices also contains provisions on misleading advertising. However, unlike the Directive 84/450/EEC, which starts from a triple purpose of protection, the new Directive is limited to actions towards consumer.
The resulting overlap has been solved in such a way that the original Directive 84/450/EEC now only applies to advertising to businesses, while misleading details in the B2C relationship are to be assessed according to the new Unfair Commercial Practices Directive. It is doubtful whether this involves a change in terms of content. The latter Directive admittedly provides more extensive and more detailed regulations of the offence of deception. However, this is essentially a codification of the ECJ's judicial practice on the Misleading Advertising Directive. The same applies to the provision concerning the enforcement of the law, which essentially conforms with the previous Directive. Against this background, significant changes are not to be expected, and it is all the more regrettable that the result is a further (unnecessary) fragmentation of Community law.
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HILTY, Reto M. and HENNING-BODEWIG, Frauke, 2007. Law against Unfair Competition: Towards a New Paradigm in Europe?. Guildford Boulder: Springer London NetLibrary, Inc. [distributor]. MPI studies on intellectual property, competition and tax law, v. 1. ISBN 978-3-540-71882-6.